Subject: RE: Patent prior art database
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Thu, 3 Jul 2008 09:14:58 -0700

> Richard Stallman --
> http://www.gnu.org/philosophy/trivial-patent.html
> -- writes:
> 
>   "What's more, the courts are reluctant to overrule
>   the Patent Office, so there is a better chance
>   of getting a patent overturned if you can show
>   a court prior art that the Patent Office did not
>   consider. If the courts are willing to entertain a
>   higher standard in judging unobviousness, it helps
>   to save the prior art for them. Thus, the proposals
>   to 'make the system work better' by providing the
>   Patent Office with a better database of prior art
>   could instead make things worse."

That's a dumb strategy if you hate patents, waiting to disclose what you
know on the off-chance that you will someday be involved in getting an
issued patent overturned in court later. It saves your best weapons for way
too late in the day when the price to play is far higher. ($3M on average,
I've been told, for *both* parties, just to start to litigate seriously in
the US.) And meanwhile you deny yourself and the community your published
knowledge they could use now *and* throw at a patent before it attacks
someone. 

You don't lose your good prior art weapons by using them now! You can still
argue them in court!

Plus as a statement of fact this is wrong; the so-called reluctance of the
courts means only that there is a higher standard of proof for reconsidering
prior art once the PTO has considered it. But the courts know that sometimes
the PTO is wrong. Good evidence of prior art remains good evidence and
courts pay attention to it. There is a reasonable chance nowadays of having
patent applicants and the PTO not waste their time and money on prosecuting
and litigating patent applications for which there is good prior art.

/Larry Rosen


> -----Original Message-----
> From: Don Marti [mailto:dmarti@zgp.org]
> Sent: Thursday, July 03, 2008 8:35 AM
> To: Luis Villa
> Cc: Randy Kramer; fsb@crynwr.com
> Subject: Re: Patent prior art database
> 
> begin Luis Villa quotation of Thu, Jul 03, 2008 at 01:07:05AM -0700:
> 
> > Possibly relevant:
> > http://wiki.mozilla.org/Legal:Prior_Art
> 
> Yes, it seems like lawyers always come up with the
> idea of "hey, let's index prior art and increase
> patent quality" which, even if it does result in
> higher-quality patents doesn't necessarily affect
> the goal of "let's reduce the impact of the patent
> system on Free Software."
> 
> If you find prior art for a patent applicant, won't
> the applicant either redraft the patent to avoid the
> prior art or save his money and patent something else?
> 
> > I tend to think that in practice no one has built this because the
> > payoffs are very abstract and very far off, and the costs to do it
> > well are fairly high. But YMMV.
> 
> Richard Stallman --
> http://www.gnu.org/philosophy/trivial-patent.html
> -- writes:
> 
>   "What's more, the courts are reluctant to overrule
>   the Patent Office, so there is a better chance
>   of getting a patent overturned if you can show
>   a court prior art that the Patent Office did not
>   consider. If the courts are willing to entertain a
>   higher standard in judging unobviousness, it helps
>   to save the prior art for them. Thus, the proposals
>   to 'make the system work better' by providing the
>   Patent Office with a better database of prior art
>   could instead make things worse."
> 
> --
> Don Marti                                               +1 415-734-7913
> mobile
> http://zgp.org/~dmarti/
> dmarti@zgp.org         Linux device driver unconference:
> http://freedomhec.org/